Blankenship v. Kerr County, Tex., 88-5568

• Decision Date: 04 August 1989
• Docket Number: No. 88-5568,88-5568
• Citation: 878 F.2d 893
• Parties: Bobby Lynn BLANKENSHIP, Plaintiff-Appellant, v. KERR COUNTY, TEXAS, Carl E. Biermann and Cliff Greeson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 893

878 F.2d 893

Bobby Lynn BLANKENSHIP, Plaintiff-Appellant, v. KERR COUNTY, TEXAS, Carl E. Biermann and Cliff Greeson Defendants-Appellees.

No. 88-5568.

United States Court of Appeals Fifth Circuit.

Aug. 4, 1989.

Rehearing and Rehearing En Banc Denied Sept. 15, 1989.

Randall B. Richards, A. Scott Campbell, Hollon, Marion & Richards, Boerne, Tex., for plaintiff-appellant.

Dawn Bruner Finlayson, John M. Pinckney, III, Matthews & Branscomb, San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, and RUBIN, and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The district court granted summary judgment dismissing this Sec. 1983 action brought by an epileptic who alleges that the police stopped him without cause, arrested him and treated him as if he were drunk, and caused him to sustain physical and emotional injuries as a result of a preventable seizure he suffered while being detained in the drunk tank. The court also dismissed the plaintiff's state common law claims under the Texas Tort Claims Act and for negligent and intentional infliction of emotional distress. Because genuine issues of material fact preclude summary judgment on the federal claims, and because the plaintiff has also stated viable claims under state law, we reverse and remand for further proceedings.

I.

According to the depositions presented in support of and in opposition to the motion for summary judgment, Bobby Lynn Blankenship had parked his car one morning at 2:20 a.m. beside his roadside mailbox to check his mail. Officer Biermann drove up with red and blue lights flashing and blocked Blankenship's path by parking in front of him headlights to headlights. Biermann claims that Blankenship had attempted to drive onto the highway facing oncoming traffic but had aborted the maneuver. Blankenship denies that he had attempted to enter the highway, asserting that his car had remained stationary while he checked his mail. He further asserts that he gave the police officer no other reason to block his path.

According to Blankenship, Biermann came up to his car, took the driver's license which Blankenship had held out to him without any exchange of words, checked the license, and immediately told Blankenship that he was drunk. Biermann, on the other hand, claims that he told Blankenship he was drunk because Blankenship had got out of his car, walked over to meet him, staggered, and spoke in a slurred manner. Blankenship counters that he never left his car, and that Biermann had had no occasion to hear him speak before he accused Blankenship of being intoxicated. Blankenship subsequently admitted that he had drunk one or two beers, but Biermann did not administer a breath-alcohol or other sobriety test.

After telling Blankenship he was drunk, Officer Biermann nonetheless instructed him to drive his car to a parking lot about half a mile away, to leave the auto there, and to walk home. Blankenship asserts that he did so and began walking in misting rain, but soon began to feel ill. Although the parties disagree in some minor respects about what happened next, it appears that Blankenship returned to the parking lot to seek help and found Biermann, who had been joined by one or two additional officers, searching his car. Using what in retrospect seems to have been a poor choice of words, Blankenship told the officers he was "getting sick." According to Blankenship, an officer who had joined Biermann yelled profanities at him and told him to walk home, which he once more began to do. Before Blankenship had crossed the parking lot, however, Blankenship asserts that Biermann, in the belief that Blankenship was not following instructions, arrested him for drunken driving. After placing Blankenship under arrest, Biermann went through his wallet, which contained a medical alert medallion warning that he was an epileptic.

Biermann took Blankenship to the local jail, where Blankenship told the booking officer that he was taking the anti-seizure medication dilantin and that he was an epileptic. Blankenship claims he also said that he felt as if he were about to have a seizure, and needed a doctor. He refused to take a breathalyzer test, but volunteered to take a blood-alcohol test. Blankenship maintains that, after a heated exchange, Biermann placed him in the drunk tank, a dark, odorous, concrete cell that contained no padding whatsoever. There is some evidence, however, that a different officer consigned Blankenship to the drunk tank without consulting Biermann.

While confined in the drunk tank, Blankenship suffered a grand mal epileptic seizure. After discovering him in this condition, jail personnel telephoned Dr. Luna, the physician on call. Dr. Luna's deposition states that he advised the jail staff to let Blankenship "ride out" the seizure, but to take him to the hospital if the seizure seemed serious. The deposition also indicates, however, that he may not have been given complete or wholly accurate information, and the jail staff appears to have told him that Blankenship was merely shamming.

Despite the doctor's instructions, Blankenship claims that the jail staff tried and failed to force dilantin down his throat. They monitored his condition to some extent, but did not provide a pillow for his head. Blankenship awoke the next morning in considerable pain, face down in a puddle of urine. Blankenship claims that as a result of his arrest and incarceration, and convulsions during which he banged his head repeatedly against the concrete, he suffered physical and emotional trauma.

Blankenship brought this suit based on 42 U.S.C. Sec. 1983, the Texas Tort Claims Act, and the Texas common law of negligent and intentional infliction of emotional distress against Kerr County, Texas, Sheriff Cliff Greeson, Officer Carl Biermann, and Dr. Joseph Luna as a result of his arrest and subsequent treatment. The district court dismissed Blankenship's state law claims as a matter of law and granted summary judgment on the Sec. 1983 claims against all defendants except Dr. Luna. Blankenship moved to reconsider, but the district court denied his motion. The claims against Dr. Luna subsequently were dismissed without prejudice at Blankenship's request so that he could appeal the court's decision as to the other parties.

II.

Blankenship first challenges the district court's summary judgment on the ground that there are genuine issues of material fact concerning the legality of his initial stop. Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." ¹

It is well established that a policeman may not stop the driver of an automobile for investigation without at least some reasonable basis for suspecting the driver of a violation of law. ² There is a conflict in the testimony as to whether Blankenship gave Biermann any legitimate reason to pull up in front of his car, to detain him, or to investigate his conduct. Moreover, the district court stated no reasons to justify dismissing Blankenship's claim based on the initial stop. We therefore reverse the summary dismissal of this claim.

Blankenship next challenges the summary judgment dismissing his claim that Biermann arrested him illegally. The district court dismissed this claim because "it is uncontroverted that Plaintiff appeared to be drunk prior to his arrest for intoxification (sic)." The court justified this assertion, however, by citing a portion of Blankenship's deposition that describes his visual "aura" rather than his external appearance, and Blankenship nowhere concedes that he appeared drunk rather than ill. At most, Blankenship admits that he had had some trouble with his speech, but the exact nature of that trouble is not clear. Moreover, Blankenship asserts that Biermann willfully and in bad faith ignored both evidence that Blankenship was ill rather than drunk and his request for medical assistance. We therefore conclude that there are genuine issues of material fact concerning whether Biermann had probable cause to arrest Blankenship, and reverse the summary judgment on this issue.

Blankenship further challenges the district court's rejection of his claims, relevant to several causes of action, that the defendants were either deliberately indifferent to his medical needs or intended to punish him. We find that the evidence in the record does not foreclose these claims. Blankenship asserts that jail personnel were aware of his medical needs, but that because they were angry at him, they deliberately placed him in an unpadded cell. Further development of the record may justify entering summary judgment on these claims in favor of some of the defendants, but the district court's decision in favor of all defendants based solely on the fact that jail personnel called Dr. Luna for medical advice cannot stand.

III.

Blankenship contends in addition that the district court should not have granted summary judgment on his claim that his initial stop, arrest, and inadequate medical care were due to the official policy or deliberate indifference of Sheriff Greeson and Kerr County. The district court rejected these claims, to the extent they survived its finding that Biermann had had probable cause to arrest Blankenship, because Blankenship had failed "to identify any specific harm caused by the alleged lack of medical training of county employees." Blankenship presented a good deal of evidence, however, that he had sustained injuries to his head because jail employees had failed to inform the doctor of his condition accurately, to follow the doctor's advice by hospitalizing him if the seizure appeared serious, or to provide protection for Blankenship's head during his convulsions even though the doctor had in no way advised them not to do so. The summary judgment, insofar as it...